Judgment : 1. This appeal is directed against the judgment and order delivered by the Additional Sessions Judge, Beed, convicting the appellants of offences punishable under section 306 of the Indian Penal Code read with section 34 of the Indian Penal Code and section 498-A of the Indian Penal Code read with section 34 of the Indian Penal Code. The Additional Sessions Judge, Beed imposed a sentence of rigorous imprisonment for seven years and a fine of Rs.1,000/- upon the appellants No.1 and 2 with respect to the offence punishable under section 306 of the Indian Penal Code read with section 34 of the Indian Penal Code. He imposed a sentence of rigorous imprisonment for three years and a fine of Rs.500/- on the appellants No.1 and 2, with respect to the offence punishable under section 498-A of the Indian Penal Code read with section 34 of the Indian Penal Code. So far as the appellant No.3 is concerned, the learned Additional Sessions Judge, imposed a sentence of rigorous imprisonment of three years and a fine of Rs.1,000/- upon her, with respect to the offence punishable under section 306 of the Indian Penal Code read with section 34 of the Indian Penal Code and a sentence of rigorous imprisonment for one year and a fine of Rs.300/-, with respect to the offence punishable under section 498-A of the Indian Penal Code read with section 34 of the Indian Penal Code. The learned Additional Sessions Judge directed the sentences to run concurrently. The appellants were also charged of having committed an offence punishable under section 323 of the I.P.C. read with section 34 of the Indian Penal Code. The learned Additional Sessions Judge, however acquitted them of the charge of the said offence. 2. The facts of the case, as were put forth before the trial Court, are as follows. Alka Gajare d/o Popat Tandale (P.W.4) was married to one Ambadas Garje - son of the appellants No. 1 and 3 and brother of the appellant No.2. The marriage had taken place about nine years before the incident, that took place on 11/04/2009. Ambadas – husband of Alka is a driver by profession and as such used to be away from home for a number of days. At the material time, Alka was residing with her husband and the appellants, in the matrimonial home. The marriage had taken place about nine years before the incident, that took place on 11/04/2009. Ambadas – husband of Alka is a driver by profession and as such used to be away from home for a number of days. At the material time, Alka was residing with her husband and the appellants, in the matrimonial home. On 11/04/2009 at about 7.30 a.m. Alka poured kerosene on her person and set herself on fire. Alka was taken to Civil Hospital, Ahmednagar, and got admitted therein. A statement of Alka was recorded by Gorakshanath Gugalkar – Special Executive Magistrate. (P.W.1) Alka succumbed to burn injuries on 12/04/2009. On 16/04/2009 her father Popat (P.W.4) lodged a report with the Police, which was treated as the first information report (Exhibit 32) and a case in respect of the aforesaid offences was registered against the appellants. After completion of investigation, on the basis of a report under section 173 (2)(i) of the Code of Criminal Procedure, the appellants were prosecuted and convicted as aforesaid. 3. The prosecution examined six witnesses during the trial. Reference has already been made to Gorakshanath (P.W.1) and Popat (P.W.4). The other witnesses are as follows. The second witness is one Dr. Shahadev Sonwane, a Medical Officer, who was attached to the Civil Hospital, Ahmednagar at the material time. He is the one who had performed post mortem examination on the dead body of Alka and opined that the death had been caused due to hypovolamic shock due to 100% superficial to deep burns. The third witness is Sayed Noor Sayed Meheboob, a head constable of Police, who was attached to Kotwali Police Station, Ahmednagar at the material time. On 11/04/2009, he was attached to Civil Hospital, Ahmednagar and on learning from Dr. Jagtap that a burnt patient was admitted in the burn ward, he had issued a letter to Gorakshanath Gugalkar, requesting him to record the dying declaration of the said patient. The fifth witness is Vijay Bagul who was attached to Ashti Police station at the material time. He was the Station House Officer on 11/04/2009. He had received the dying declaration of Alka recorded by Gorakshanath (P.W.1), in a sealed envelope. The sixth and last witness Prabhakar Bagal, is the Investigating Officer in the matter. 4. I have heard Mr. S.S. Jadhavar – learned advocate for the appellants and Mr. He was the Station House Officer on 11/04/2009. He had received the dying declaration of Alka recorded by Gorakshanath (P.W.1), in a sealed envelope. The sixth and last witness Prabhakar Bagal, is the Investigating Officer in the matter. 4. I have heard Mr. S.S. Jadhavar – learned advocate for the appellants and Mr. N.R. Shaikh, Additional Public Prosecutor for the State. With the assistance of the learned counsel, I have gone through the evidence adduced during the trial carefully. I have also gone through the impugned judgment and other relevant record. 5. Mr. Jadhavar, the learned advocate for the appellants submitted that the case was based mainly on the dying declaration allegedly made by Alka to Special Executive Magistrate Gorakshanath (P.W.1), which Gorakshanath had reduced into writing (Exh. 22). He submitted that barring the evidence in respect of the said dying declaration, the only other evidence implicating the appellants, was that of Popat (P.W.4) who claimed that Alka had made a dying declaration to him implicating the appellants. According to him, however, the evidence with respect to the dying declarations made by Alka, was not reliable and could not have been sufficient for convicting the appellants. Mr. Jadhavar also contended that Popat (P.W.4) himself had not supported the case of prosecution with respect to the allegations of cruelty and that he was, in fact, declared as ‘hostile’ by the learned Additional Public Prosecutor. He, thus, submitted that the judgment of conviction as recorded by the learned Additional Sessions Judge, was not in accordance with law and that the appellants were entitled to be acquitted. Mr. N.R. Shaikh, the learned Additional Public Prosecutor, on the other hand, contended that reliance has rightly been placed by the learned Additional Sessions Judge on the dying declaration of Alka recorded by Special Executive Magistrate Gorakshanath (P.W.1). He also submitted that though Popat (P.W.4) had resiled from his original version as reflected in the first information report (Exh.32), it was obviously to help the appellants as the appellant No.3 was the real sister of Popat (P.W.4). He therefore, submitted that the conclusion arrived at by the learned Additional Sessions Judge was proper and legal, and did not need any interference. 6. That, Alka died an unnatural death due to burn injuries, is not in dispute, and is even otherwise sufficiently proved from the evidence of Dr. Shahadev Sonwane (P.W.2). He therefore, submitted that the conclusion arrived at by the learned Additional Sessions Judge was proper and legal, and did not need any interference. 6. That, Alka died an unnatural death due to burn injuries, is not in dispute, and is even otherwise sufficiently proved from the evidence of Dr. Shahadev Sonwane (P.W.2). That the death of Alka was suicidal, is also not in dispute. 7. What therefore, needs to be determined is, whether Alka was treated with cruelty by the appellants and whether the commission of suicide by Alka was abetted by the appellants, or any of them ? 8. It would be appropriate to first consider the evidence in respect of the dying declarations made by Alka. It is because these would contain Alka’s version with respect to the incident and this version would throw light on what led her to taking the extreme step of putting an end to her life. 9. In his evidence, Gorakshanath (P.W.1) stated that he received a letter from the police brought to him by Sayed Noor Sayed Meheboob (P.W.3), calling upon him to record the statement of Alka and that he then went to the Civil Hospital and met Dr. Supriya Jagtap, who was then working as Casualty Medical Officer. According to Gorakshanath (P.W.1), he requested Dr. Supriya Jagtap to accompany him and check the fitness of the patient for the purpose of recording a dying declaration. According to him, he and the Doctor went to the burn ward. That, the relatives of the patient i.e. Alka, were removed out of the burn ward. That Dr. Supriya, then examined Alka and told Gorakshanath that the patient was conscious and also accordingly, made an endorsement on the proforma prescribed for recording dying declarations. That, Gorakshanath also put certain questions to Alka as and by way of preliminary inquiry, introduced himself to the patient and on being satisfied that Alka was talking properly, asked the details of the incident. 10. Gorakshanath stated that Alka told him that her mother-in-law, father-in-law and brother-in-law used to trouble her and that on the previous day, her father-in-law and brother-in-law had beaten her. That since last six months, her father-in-law, mother-in-law and brother-in-law were quarreling with her and were illtreating her. That due to their illtreatment, she was fed up and had set herself on fire after pouring kerosene on her person. That since last six months, her father-in-law, mother-in-law and brother-in-law were quarreling with her and were illtreating her. That due to their illtreatment, she was fed up and had set herself on fire after pouring kerosene on her person. Gorakshanath then reduced the statement made by Alka to writing, read it over to her and when she admitted the contents to be true and correct, obtained her thumb impression thereon. Gorakshanath also signed the record of the said statement (Exh. 22) and put his rubber stamp below it. He then asked Dr. Supriya to check the patient, which was done and again an endorsement to the effect that the patient was conscious and oriented, was made by Dr. Supriya Jagtap. 11. In the cross examination, certain general questions about the precautions required to be taken before recording dying declaration, were put to him in an attempt to suggest that the necessary precautions had not been taken by him. Nothing significant has been revealed as a result of such questioning. 12. It was suggested to him that the patient was crying for help and her voice was low, but he denied the said suggestion as not true. He also denied the suggestion that there was no consistency in the talk of Alka. Not only he denied that Alka was not in a condition to speak but also denied that she was in a state of giddiness, or that she did not understand the questions properly. 13. It would be now proper to examine the record of the dying declaration (Exh.22) made by Gorakshanath and see what was the version of Alka, regarding how she had sustained the burn injuries. It would be appropriate to reproduce the same. “HINDI ” Translated in English, it would read thus: “My brother-in-law Bapu and father-in-law both beat me yesterday i.e. on Friday afternoon in my house. My husband had gone to Madras on the vehicle. I used to have frequent quarrels with my mother-in-law. I was fed up by the beating of father-in-law and brother-in-law Bapu. The husband is good. There was no trouble from husband. Mother-in-law, father-in-law and brother-in-law, all three used to quarrel with me since last six months. They troubled me. I am fed up because of the frequent quarrels with mother-in-law, father-in-law and brother-in-law on every small issue. I was fed up by the beating of father-in-law and brother-in-law Bapu. The husband is good. There was no trouble from husband. Mother-in-law, father-in-law and brother-in-law, all three used to quarrel with me since last six months. They troubled me. I am fed up because of the frequent quarrels with mother-in-law, father-in-law and brother-in-law on every small issue. Therefore, yesterday i.e. on Friday by being fed up, I poured kerosene over my body and set myself on fire. My statement is read over to me. It has been properly recorded as per my narration”. Below this, there is a thumb impression, purporting to be the left hand thumb impression of Alka. This is followed by an endorsement of the Doctor to the effect that ‘the patient was conscious and oriented to give statement’ followed by the signature of Gorakshanath above his rubber stamp. 14. While considering whether the evidence in respect of this dying declaration is reliable and acceptable, the evidence of Gorakshanath, the record of the dying declaration Exh.22 as also the version in the dying declaration, is required to be scrutinized. It is needless to say that first of all, the Court would be required to be satisfied that the dying declaration was actually made. Incidentally, in order to be satisfied about what was precisely said by the deceased, and the Court would be required to be satisfied that the document (Exh.22) contains an accurate record of what the deceased had said. Thereafter, it would be required to be determined whether the version in the dying declaration can be believed to be true, and in that process, it would be necessary inter alia to be satisfied about the fitness of the declarant to make a rational statement about what had happened. Lastly, if the version, if believed to be true and accepted, discloses the commission of the alleged offences by the appellant, would need determination. 15. Before proceeding further, it may be observed that there is clearly a factual error in the dying declaration. The prosecution case is specific that Alka had caught fire on 11/04/2009 itself, in the morning and then, immediately, she was taken to hospital. It is not that the date is important, but what is important, is that, the dying declaration Exh. 22 was recorded on the same day on which Alka had set herself on fire. The prosecution case is specific that Alka had caught fire on 11/04/2009 itself, in the morning and then, immediately, she was taken to hospital. It is not that the date is important, but what is important, is that, the dying declaration Exh. 22 was recorded on the same day on which Alka had set herself on fire. It is nobody’s case that, the dying declaration was recorded on the day next after the incident. The entire evidence shows that Alka was taken to hospital immediately and then on the same day, in the afternoon, her dying declaration came to be recorded by Gorakshanath. In the dying declaration, however, Alka has mentioned that she had set herself on fire, on the previous day afternoon. This is obviously incorrect. Thus, the statement made by the declarant about the time of the incident, is certainly wrong. 16. This, therefore, creates a doubt whether Alka was well oriented and capable of making a factual, correct and truthful statement. This is particularly because Alka had sustained 100% burn injuries. Though no general proposition that a person sustaining 100% superficial to deep burn injuries would not be able to make rational statement can be advanced, the fact remains that for arriving at a satisfaction about the fitness of the declarant in such a situation, the Court would need positive medical opinion. In the instant case, the Doctor, who had certified the fitness of Alka, has not been examined at all. From the impugned judgment, it appears that the Doctor – Smt. Supriya Jagtap – had undergone Caesarean operation and was not readily available for giving evidence. It appears that because of temporary unavailability of the said Doctor, she was not examined as a witness and neither the prosecution, nor the learned judge felt any necessity of bringing on record such valuable evidence. Even if an adverse inference against the prosecution is not drawn because of the non examination of the said Medical Officer, the fact remains that there is no medical evidence about the fitness of the state of mind of Alka. Even if an adverse inference against the prosecution is not drawn because of the non examination of the said Medical Officer, the fact remains that there is no medical evidence about the fitness of the state of mind of Alka. The belief that a person who had sustained 100% burn injuries and had, admittedly, made an incorrect statement on a vital aspect viz - as to the date and time of the incident, was fully fit mentally and physically to make a statement can not be formed merely because the person recording the statement says so. Certainly, in the absence of the examination of the Medical Officer as a witness, no importance to the endorsement on the dying declaration Exh.22 purporting to have been made by the Medical Officer, can be given. It is also difficult to believe that thumb impression of Alka could be obtained on Exh. 22 though she had sustained 100% burn injuries indicating thereby that even the thumbs of Alka had been burnt. 17. Interestingly, the document at Exh.22 speaks that even the Doctor was asked to go out while the dying declaration was being recorded. In the evidence, however, Gorakshanath stated that the Doctor was present when the dying declaration was recorded. He was contradicted by referring to the relevant part of Exh.22 which mentions that the Doctor was asked to go out of the Ward, but he maintained that actually the Doctor was present. Thus, even if one may not go to the extent of holding that the Doctor was indeed not present when the dying declaration was recorded; the conclusion that Exh.22 can not be said to be an accurate record of the happening or of the statement made by the deceased, can not be avoided. 18. Gorakshanath’s evidence can not be said to be reliable and trustworthy. He went to the extent of denying that the patient was crying for help and her voice was low. The very fact that Alka had sustained 100% burn injuries, would indicate that she must be finding difficulty in speaking, but any doubt in the regard can be removed by the evidence of Alka’s father Popat (P.W.4) who clearly admitted that Alka’s condition was bad and that her voice had become low. According to Popat, Alka was not talking in clear words and he was not able to understand fully as to what she was telling. According to Popat, Alka was not talking in clear words and he was not able to understand fully as to what she was telling. This is quite believable, considering the extent of burn injuries sustained by Alka and the fact that she actually died on that day itself. Thus, the testimony of Gorakshanath fails to inspire confidence and though it may not be said that no statement was at all made by Alka, the accuracy of record made by Gorakshanath is open to doubt and what exactly was stated by Alka, can not be concluded with the requisite degree of satisfaction. 19. Now, taking the version in the dying declaration Exh. 22 and the version in the dying declaration made to Popat as it is, it would need examination whether the same would establish either cruelty or abetment to commit suicide on the part of the appellants. Even the evidence with respect to the cruelty meted out to Alka is not satisfactory. If the evidence of Popat is seen, it is clear that the main reason for the quarrels that had been taking place between Alka and the appellants, was that Alka wanted that she and her husband should reside separately from the appellants. Popat has admitted that the appellants depended on the income of Alka’s husband and that Alka wanted to stay separately, but the appellants wanted to be joint. In fact, Popat has admitted that Alka was short tampered. His evidence also reveals that Alka and her husband had resided separately at Mumbai for three years, but because of his profession, Alka’s husband had to remain with the truck and be out of the house for about 4 to 5 days at a time; and that Alka would remain alone in the house at Mumbai and that therefore, her husband brought her back in the joint family. Popat has admitted that Alka was not happy with this decision of her husband. There is an important admission given by Popat to the effect that Alka’s husband has assured that he would come on 10/04/2009, but actually he did not come and therefore, Alka had become nervous. 20. Popat was declared as hostile by the learned Additional Public Prosecutor. Learned trial judge also concluded that he wanted to help the appellants. There is an important admission given by Popat to the effect that Alka’s husband has assured that he would come on 10/04/2009, but actually he did not come and therefore, Alka had become nervous. 20. Popat was declared as hostile by the learned Additional Public Prosecutor. Learned trial judge also concluded that he wanted to help the appellants. However, upon considering the evidence of Popat, I am unable to hold that he has lied and that too with the object of helping the accused persons. He did state in his evidence that Alka told him that she had quarrels with her mother-in-law, brother-in-law and father-in-law, and that, therefore, she had set herself on fire. He also stated that there were quarrels between Alka and her in-laws and Alka wanted to start residing separately from the joint family. He also stated that Alka had told him that on 10/04/2009 the appellants had quarreled with her and had beaten her and that therefore, she had on 11/04/2009 set herself on fire. It is difficult to understand on what basis, it can be said that this witness had not told the truth to the Court. He was declared hostile, as, probably, the prosecution wanted him to create a picture of tremendous torture and ill-treatment to his daughter, leaving her no option but to put an end to her life; and this was not stated by this witness. After carefully considering the evidence of this witness, I find the same trustworthy and reliable. He has clearly stated that there were disputes and quarrels between his daughter and the accused persons and that on the earlier day, the appellants had quarreled with her and had beaten her; and that she had, therefore, committed suicide and that this was so, was told to him by Alka only. He however admitted that the quarrels were on account of the insistence of Alka not to stay in the joint family and to reside separately, which probably was felt inconvenient by the prosecution from the point of view of establishing cruelty on the part of the appellants; and clearly; for this reason he was declared as hostile. He however admitted that the quarrels were on account of the insistence of Alka not to stay in the joint family and to reside separately, which probably was felt inconvenient by the prosecution from the point of view of establishing cruelty on the part of the appellants; and clearly; for this reason he was declared as hostile. The reasoning that since the appellant No.3 is his real sister, he wanted to save her and therefore, gave false evidence, does not appeal to reason, as, in that case, he would not have mentioned about the quarrel between Alka and the appellants on the previous day, and about Alka having told him about the reason behind the suicide. In my opinion, he has told the truth before the Court and has put18 forth the facts as they were, instead of trying to exaggerate and allege extreme acts of ‘cruelty’ on the part of the appellants. 21. The existence of cruelty can not be proved merely because suicide has been committed. Undoubtedly, to a large extent the concept of “Cruelty” will be subjective; but no claim of “cruelty” can be made without an objective basis. Thus, merely because the victim has taken a drastic step of ending her life, it can not be presumed that the treatment that was being given to her was cruel, so as to attract the punishment provided for, in Section 498-A of the Indian Penal Code. The explanation to section 498-A of the Indian Penal Code makes it clear that Cruelty means, “any willful conduct which is of such a nature as is likely to drive a woman to commit suicide or cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”. The words “willful conduct” and “likely to” used in Explanation clause (a) are significant. The words “likely to” used in the said clause show that clause (a) of Explanation to section 498-A of the Indian Penal Code requires the willful conduct to be of such a nature as would likely to drive a woman to commit suicide or to cause grave injury, or danger to life, limb or health. The words “likely to” used in the said clause show that clause (a) of Explanation to section 498-A of the Indian Penal Code requires the willful conduct to be of such a nature as would likely to drive a woman to commit suicide or to cause grave injury, or danger to life, limb or health. As reactions of different persons vary, the extent of cruel treatment needs to be objectively assessed in order to see whether a reasonable or average person would be likely to be driven to commit suicide or cause grave injury to her on account of such treatment. At the cost of repeatation, it may be emphasized that, that suicide has been in fact committed, can not, by itself, be considered as proof of cruelty. 22. In the instant case, the quarrels and the incidents of ill-treatment suffered by Alka from the appellants, were, admittedly, on account of Alka’s desire to stay separately from the joint family. It is significant that Alka had no complaint against her husband. It also appears from the evidence that the appellants were depending on the income of Alka’s husband. This factor and the nature of the profession of Alka’s husband which required him to be away from his house for several days, made Alka’s husband to think it desirable to stay in the joint family. Howsoever strong the desire of Alka might be of staying separately, and howsoever genuine her grief would be for having been required to stay in a joint family, the same can not constitute as “willful conduct” of the appellants which was likely to drive Alka to commit suicide. 23. In fact, the dying declaration of Alka is quite plain. It nowhere suggests that the appellants have committed any offence or that they are responsible for her death . What Alka stated is a plain statement of fact ‘mentioning that she was fed up with the quarrels and decided to put an end to her life’. In fact, the Investigating agency did not record any offence inspite of availability of such a statement and the reason could very well be that it did not clearly spell out any offence or offences. It may be observed in this context, that Mr. In fact, the Investigating agency did not record any offence inspite of availability of such a statement and the reason could very well be that it did not clearly spell out any offence or offences. It may be observed in this context, that Mr. Jadhavar, learned advocate for the appellants, contended that this dying declaration was a got up document and that it was prepared subsequently, as, according to him, had this document been available to the prosecution on 11/04/2009, a case would have been registered against the appellants on that day itself. After carefully considering all the relevant aspects of the matter, I do not think that the document at Exh. 22 was manufactured after the registration of the crime i.e. on 16/04/2009 on the basis of the report lodged by Popat (Exh. 32) and that, the non-existence of any such document was the reason for not registering a crime earlier. However, in my opinion, the reason for not registering any crime on the basis of the information contained in the document (Exh.22), was, in all probability, that this document does not clearly spell out any offences . 24. If the concept of abetment is kept in mind, it is clear that to hold a person responsible as an abettor, it should be shown that he intended that the act abetted should be committed. In other words, for holding the appellants guilty of having abetted commission of suicide of Alka by quarreling and / or by beating her, they must be shown to have intended that Alka should commit suicide; rather, that should be alleged to be the object of the quarrels and / or beatings. There is no such allegation, much less any evidence, to support such a theory. When such is not the theory, the acts attributed to the appellants, even if held to be satisfactorily proved for the sake of arguments, would not constitute abetment to commit suicide. 25. The marriage of Alka with Ambadas had taken place about ten years before the incident. Therefore, the presumption provided under section 113-A of the Indian Evidence Act was not available to the prosecution in the instant case. 26. To sum up, in the first place, it is not clear whether Exh. 22 contains an accurate record of what Alka had allegedly stated to Gorakshanath (P.W.1). Therefore, the presumption provided under section 113-A of the Indian Evidence Act was not available to the prosecution in the instant case. 26. To sum up, in the first place, it is not clear whether Exh. 22 contains an accurate record of what Alka had allegedly stated to Gorakshanath (P.W.1). Secondly, whether Alka was in a fit state of mind at the time of making any such statement is highly doubtful; and in the absence of the evidence of the Doctor, who is supposed to have certified Alka’s fitness to make a statement at the material time, it is more probable than not that Alka was not in a fit state of mind to make a proper, and rational statement. Thirdly, the dying declaration does not establish any acts as would amount to ‘cruelty’ as is contemplated and made punishable under section 498-A of the Indian Penal Code. Fourthly, the cause for disputes and quarrels that used to take place between Alka and the appellants, is said to be the insistence of Alka to reside separately from the joint family; and if this would be so, it would be impossible to term the conduct of the appellants as “willful conduct” within the meaning of Explanation (a) to Section 498-A of the Indian Penal Code. Lastly, even if Alka had committed suicide on being fed up by the frequent quarrels between her and the appellants within a span of about six months before the incident, and the consequent beatings by the appellants, the appellants can not be said to have abetted the commission of suicide by Alka. 27. The appreciation of evidence as done by the learned Additional Sessions Judge and the conclusion arrived at by him, was not proper and legal. This was a case where the appellants should have been acquitted. ORDER The appeal is allowed. The Judgment and Order of conviction recorded by the Additional Sessions Judge, Beed, as also the sentences imposed by him, are set aside. The appellants are acquitted. The appellants No. 1 and 2 be set at liberty forthwith, unless required to be detained in connection with some other case. Bail bonds of the appellant No. 3 shall stand discharged. Fine, if paid, be refunded to the appellants respectively.